Wearing two hats, chief judge weighs bail case

Chief Judge Mary Ellen Barbera found herself in an interesting position last week as she testified before lawmakers about how Maryland's courts will meet a constitutional mandate that defendants get a lawyer when their bail is first set.

As a member of the state's highest court, Barbera wrote a forceful dissent to a decision that could dramatically change the way the state treats defendants before trial. But as the state's top judge, Barbera also faces the administrative task of carrying out that ruling.

To complicate matters, the issue is back before her court, and she may have to rule on it again.

In Maryland, the state's chief judge also serves as the head of the judicial branch of government — overseeing court administration along with the weighty legal matters before the high court. The setup can make for some awkward situations when the Court of Appeals takes on matters of court procedure.

Through a spokeswoman, Barbera declined to comment on her role, citing the ongoing case.

As administrator, Barbera told senators that she endorsed a plan to comply with the ruling. But in her role as a judge in September, Barbera wrote a dissent, questioning the wisdom of providing lawyers at an initial hearing.

Public defenders are available to suspects when they come before a judge who will review the bail set by a court commissioner, but the court ultimately decided that counsel should also be available at the first stage.

Barbera argued in her dissent that the change would not make the process fairer to defendants.

"I fear that these changes will prolong — not diminish — the time a defendant spends in custody prior to bail review by the District Court," she wrote.

The judiciary now says it needs a year to implement reforms under the court ruling, but a lower court ordered last week that the changes be made right away. Barbera's Court of Appeals moved quickly to put that order on hold.

So when the court convenes Thursday, it will be up to Barbera and her fellow judges to decide whether to give their sister courts more time.

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